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Criminal Arrest - Were you arrested on an existing warrant
by Randall Kelton

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Criminal Arrest - Were you arrested on an existing warrant

We start the evaluation of a criminal case by examining the practices and procedures of those officials involved in the arrest. There are certain rules the arresting officer and all those acting in concert with him/her, must follow, certain things they must do. This section will analyze the arrest procedure from the perspective of governing law.

On Yes -- To your knowledge, did the officer who testified before the magistrate to secure the warrant, misrepresent the truth to the magistrate?

On Yes -- Create Frank's Hearing Motion --> Were you taken directly to the nearest magistrate?

If you were arrested on an existing warrant and you have reason to believe that the officer, who testified before a magistrate to secure the warrant, misrepresented the truth to the magistrate, a motion for a Frank's hearing should be prepared and filed with the trial court. Click the link provided and you will be taken to a tool that will develop the information needed to create a Frank's Hearing motion.

On NO - Did the arresting officer personally see or hear the offense committed?

In order for an officer to arrest you without a warrant on a misdemeanor, the officer must see or hear the offense being committed. On a felony, the officer can arrest without personally seeing or hearing the offense if a witness has pointed you out and alleged that you committed the offense or, if their is evidence that a felony has just been committed and you appear to be at, near, or leaving the scene and there is a likelihood you will escape. Otherwise, in the officer must go to a magistrate, testify to probable cause to the magistrate, then secure a warrant.

The requirement that an arrested person be taken before a magistrate has been in law since 1216 and the signing of the Magna Carta. It has served justice well, however, as is always the case, police, prosecutors, and judges always want to make their jobs easier by cutting corners and this is a primary corner they tend to cut. They will allege that,
if you do not demand to be taken to a matistrate that you waive the right. If the court were to hold that such is true, that would not negate the ministerial duty on the part of the officer to follow existing law. The police and prosecutors would have it that, if you do not demand that they follow law, they do not have to.
The requirement to take a person is a statutory duty placed on the officer. It is a matter of procedure between the officer and the magistrate to whom the officer is directed to take every person he/she arrests. You have no power to waive that statutory duty.
Failure to take you to the nearest magistrate who would make him/herself available is a criminal act in violation of Texas Penal Code 39.03 in that the officer failed to perform a duty s/he is required to perform and, in the process, denied the arrested person in the right to the due course of he laws of the State of Texas. This will have the effect of disqualifying the officer as a credible witness and should get a motion to dismiss based on the due process violation and a motion to strike any testimony on the part of the officer my not be construed as a credible witness.